Friday, December 26, 2014

Defence of Absolute Privilege not extended to Municipal Councillors

Gutowski v. Clayton, 2014 ONCA 921:

[20] Nothing in this record supports an extension of absolute privilege to municipal councillors, in my opinion.

[21] In this regard, I do not accept the appellants' argument that the absence of the protection of absolute privilege is "presumed" to have a "chilling effect" on the ability of councillors to perform their function. They rely on Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, for their submission that no evidence is required to establish the chilling effect flowing from the lack of a defamation defence. However, I do not think that the affirmation of the defence of "responsible communication on a matter of public interest" by the Supreme Court of Canada in Grant (and in its companion decision in Cusson v. Quan, 2009 SCC 62, [2009] 3 S.C.R. 712),is of assistance to the appellants in these circumstances.

[22] Both Grant and Cusson involved statements made by a journalist in the press. Unlike municipal councillors, who have ready resort to the defence of qualified privilege, journalists have only been able to avail themselves of that defence with difficulty because of the high threshold required to meet it and because the criteria for the reciprocal duty and interest required to establish it were unclear: Grant, at para. 34-37. Generally, journalists and publishers were confined to the defences of fair comment and justification, both of which place a premium on verifying the truth of the facts underpinning the statement – a task at times difficult for journalists to perform.